PATTON v. HARVAT

The opinion of the court was delivered by: JOHN W. DARRAH, District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff, Ettoy Patton, commenced an action, pro se,
against Defendants, Debbie Harvat and Tabor Hills Healthcare Facility,
alleging her employment was terminated in violation of the American with
Disabilities Act and Title VII of the Civil Rights Act of 1964. Before
this Court is Defendants' Motion to Dismiss. Patton did not file a
response to Defendants' motion.

In reviewing a motion to dismiss, the court reviews all facts alleged
in the complaint and any inferences reasonably drawn therefrom in the
light most favorable to the plaintiff. Marshall-Mosby v. Corporate
Receivables, Inc., 205 F.3d 323, 326 (7th Cir. 2000). Dismissal is
warranted only if "it appears beyond a doubt that the plaintiff can prove
no set of facts in support of its claims that would entitle it to
relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957).

A reading of Patton's Complaint and Charge of Discrimination with the
Equal Employment Opportunity Commission supports the following summary of
the alleged conduct of the parties.

On August 21, 2003, Patton filed a Charge of Discrimination with the
EEOC. Patton's charge, in its entirety reads:

I was hired by the Respondent on May 21, 2002. I
was employed as a C.N.A. On May 12, 2003, I was
discharged. I believe that I have been discriminated against
on the basis of my race, Black, in violation of
Title VII of the Civil Rights Act of 1964, as
amended.

In her EEOC charge, Patton checked the box for race discrimination;
she did not check any other box, including the boxes for discrimination
based on age. On October 6, 2003, Patton received a Dismissal and Notice
of Right to Sue from the EEOC.

On December 23, 2003, Patton filed a pro se Complaint of
Employment Discrimination in which she indicated that she was
discriminated against because of her color, race, and disability. Patton
also alleges that she is suing a state or local agency pursuant to
42 U.S.C. § 1983. In the section for facts supporting her claim, Patton
stated,

The defendant discriminated against the plaintiff
because of a past injury which the plaintiff had
orders from doctor not to do anything but light
duty. After injury was healed defendant let the
plaintiff work another month and a half before
termination.

Defendants argue that Patton's ADA claim should be dismissed because
Patton failed to exhaust her administrative remedies for this claim.

Title VII plaintiffs must initially bring a charge with the appropriate
administrative body, i.e., EEOC, EEO, before pursuing a claim in
federal court; and, thus, Title VII claims cannot be brought if they were
not included in the plaintiff's EEOC complaint. Babrocky v. Jewel
Food Co., 773 F.2d 857, 864 (7th Cir. 1985) (Babrocky). An
exception to this general rule, which allows a claim not included in the
EEOC complaint to be pursued in federal court, exists when that
subsequent claim is "reasonably related" to the claim that was included
in the EEOC charge. Babrocky, 773 F.2d at 864. To be reasonably
related, a factual relationship must exist between both claims;
specifically, a claim in a Title VII plaintiff's complaint and an EEOC
charge are reasonably related when the subsequent claim can be reasonably expected to be developed from an
investigation of the allegations in the EEOC charge. Cheek v. Western
and Southern Life Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994).

Courts will give Title VII pro se plaintiffs leeway in regards
to the administrative specificity requirement in EEOC complaints. The
basis for this liberal construction is to give pro se plaintiffs
leeway by construing their allegations in light of the strongest
arguments that they may suggest when deciding whether the claims in the
complaint are encompassed by the EEOC charge. Hudson v. McHugh,
148 F.3d 859, 864 (7th Cir. 1998).

Here, Patton only alleged that her employment was terminated because of
her race in her EEOC charge. There is no discussion or even mention of
any type of disability within the EEOC charge, and a claim for disability
discrimination cannot be reasonably expected to be developed from an
investigation of the allegations in the EEOC charge.

Accordingly, Patton's ADA claim is dismissed with prejudice.

Defendants next argue that Patton's Section 1983 claim should be
dismissed for failure to state a claim for which relief may be granted.

A Section 1983 cause of action requires a plaintiff to plead that she
was deprived of a right secured by the Constitution or a federal law at
the hands of someone acting under color of law. See Hanania v.
Loren-Maltese, 212 F.3d 353, 356 (7th Cir. 2000). The requirement
that someone act "under color of law", also referred to as "state
action," "preserves an area of individual freedom by limiting the reach
of federal law and federal judicial power." Lugar v. Edmondson Oil
Co., 457 U.S. 922, 936 (1982) (Lugar). Accordingly, the
alleged conduct causing the deprivation of a federal right must be fairly
attributable to the state. Lugar, 457 U.S. at 937. To be fairly
attributable to the state, the deprivation must (1) be caused by the exercise of some right or
privilege created by the State or by a rule of conduct imposed by the
state or by a person for whom the state is responsible and (2) the party
charged with the deprivation must be fairly said to be a state actor.
Lugar, 457 U.S. at 937. An individual may be considered a state
actor if he is a state official, if he has acted together with or has
obtained significant aid from state officials, or if his conduct is
otherwise chargeable to the state. Lugar, 457 U.S. at 937.

In the instant case, there are no allegations of state action or that
any of the Defendants are state officials, acted with or obtained
significant aid from state officials or that their conduct be chargeable
to the State. Accordingly, Patten has failed to plead a Section 1983
claim; and such claim is dismissed without prejudice. See Lugar,
457 U.S. at 937.

Lastly, Harvat seeks to have Patton's claims against her because, as
Patton's supervisor, she has no personal liability under Title VII or the
ADA.

Both Title VII and the ADA make it unlawful for an "employer" or its
"agents" to engage in discrimination prohibited by those laws. An
employee's supervisors or managers, in their individual capacities, do
fall within the definition of "employer" or its "agents" under either
Title VII or the ADA. See Williams v. Banning, 72 F.3d 552,
553-54 (7th Cir. 1995)(Williams). Accordingly, individual
supervisors and managers have no personal liability under Title VII or
the ADA. See Williams, 55 F.3d at 553-54.

Here, Patton does indicate the status of Harvat. However, she does not
dispute that Harvat was her supervisor at Tabor Hills Healthcare
Facility. Accordingly, Patton's claims against Harvat are dismissed
without prejudice. Based on the above, Defendants' Motion to Dismiss is granted. Patton's
ADA claim is dismissed with prejudice; Patton's Section 1983 claim is
dismissed without prejudice, and Patton's claims against Harvat are
dismissed without prejudice.

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